Dive Brief:

• A teacher’s lap band surgery didn’t render her protected by the Americans with Disabilities Act’s (ADA) "regarded as" disabled prong, the 5th U.S. Circuit Court of Appeals held (Lyons v. Katy Independent School District, No. 19-20293 (5th Cir. June 29, 2020)).
• The plaintiff had alleged she was reassigned based on her perceived disability — impairments related to her procedure. A federal district court granted summary judgment for the employer, concluding that because the impairment lasted less than two months, it was exempt under the prong’s "transitory and minor" exception.
• On appeal, the 5th Circuit upheld the lower court’s order, stating that "any impairment as a result of [her] lap band surgery was objectively transitory and minor by her own admission, because the actual or expected duration of any impairment related to the lap band procedure was less than six months."

Dive Insight:

The ADA provides nondiscrimination protection to individuals with an actual disability; with a record of a disability; and regarded as having a disability.

That third prong, however, contains an exception for impairments that are "transitory and minor" in nature. Specifically, "[a] transitory impairment is an impairment with an actual or expected duration of 6 months or less."

Notably, the Lyons court said it didn’t need to address whether the law requires that impairments be both transitory and minor to qualify because the plaintiff’s obviously had both of those characteristics. Other courts have had to address that question, however. The 3rd Circuit just weeks ago opined that the law requires an impairment be both transitory and minor to lose the protection of the ADA’s regarded as prong, reviving a truck driver’s suit for reconsideration.

Despite courts enforcing this exception, employers may want to note that Congress made it easier for workers to establish "regarded as" coverage with the 2008 ADA Amendments Act, as explained in the appendix to its regulations. It also, however, made clear that individuals entitled to protection only under the "regarded as" prong of the definition of disability are not entitled to accommodations.